Carter vs. Clark

President urges prosecution

The situation is shrouded in legal subtleties, but that did not stop Jimmy Carter, who is no lawyer, from barging right into it. Strolling to the back of Air Force One on a flight over the Rockies, the President responded garrulously to reporters' questions about former Attorney General Ramsey Clark's trip to Iran despite Carter's ban on travel there. Said Carter: "My inclination is, within the bounds of the law, to go ahead and prosecute both Clark and the others who went against my directive."

Only two days earlier, one reporter noted, Secretary of State Edmund Muskie had taken a far softer line on Clark's joining a ten-member delegation of private U.S. citizens who took part in a Tehran conference on alleged U.S. intervention in Iran. Muskie said that Carter's ban sprang from concern "about the safety of Americans traveling in a country where there is anti-American hostility." Added Muskie: "The purpose of the policy is not to punish people who violate it, but to prevent people from going." Snapped Carter when asked about Muskie's views: "I don't think Ed Muskie has any legal responsibility for determining whom to prosecute or not to prosecute."

In a strict legal sense, neither does the President. While he is charged broadly with ensuring that the laws are "faithfully executed," it is considered improper for him to suggest publicly what the Justice Department ought to do in a case that it has not yet even investigated. But Carter's tongue ran on. "I would guess civil penalties would be more appropriate," he said of Clark's trip. "I am not trying to discount the possibility of criminal prosecution." Carter said he had been advised by Attorney General Benjamin Civiletti before issuing his travel ban on April 17 that his order was legal. Moreover, said Carter, Clark was "a misguided American," whose mission "might exacerbate an already serious situation and cause further damages to the hostages."

Many Americans might agree that Clark had meddled irresponsibly in the hostage situation, but that does not necessarily make him liable to prosecution. Stopping in Paris on his way home, the lanky, Texas-born Clark said that as Attorney General from 1967 to 1969, "I tried to enforce the law as I saw it, not make politics out of it." Said he: "Presidents shouldn't interfere in the law." In his own case, Clark insisted, "the Constitution assures Americans of the right to travel."

At the Justice Department, lawyers privately agreed that Clark had "a good argument" on constitutional grounds. The Supreme Court in 1958 had ruled that "the right to travel is a part of the 'liberty' of which the citizen cannot be deprived without the due process of law." While the Executive Branch has the right to deny U.S. citizens the use of passports to travel to certain countries, the court said in 1967, only Congress can enact criminal laws penalizing Americans who decide to go to such countries anyway. Congress had repeatedly refused to do so.

The Carter Administration based its Iran travel ban on a 1977 law, the International Emergency Economic Powers Act. Designed to prevent Americans from trading with certain countries when national security is involved, the act could only be applied to Clark on the nebulous theory that any money he spent in Iran, or was given in the form of free lodging or meals, constitutes illegal "transactions and foreign exchange." His airfare and other expenses were paid by the Iranian government.

Civiletti said the President's statements would not influence whatever he might decide to do about Clark. More privately, Justice Department lawyers deplored Carter's intervention. Said one: "Carter shot off his mouth again." Explained a Civiletti aide: "The Attorney General genuinely feels Clark's conduct is unfortunate, but he doesn't want to prosecute him."

At a time when Carter's human rights policy still urges the Soviet Union to give its political dissidents the freedom to leave that country, it would seem ironic for the U.S. to prosecute a former Attorney General for exercising his right to travel abroad and express his opinions, however unpopular they might be at home.

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